It is a little-known and disturbing fact that the Supreme Court is in the process of gutting what may be the most important civil rights statute Congress has ever passed. It is particularly distressing that the harm is being done by a largely unanimous court—and that, other than a few legal scholars, no one seems to be paying any attention.

The statute in question is Section 1983 of the United States Code, which was enacted in 1871 as part of Reconstruction. Section 1983 enables people to bring suits in federal court to enforce the rights created by the Fourteenth Amendment—which, among other things, prohibits state officials from depriving persons of due process and equal protection of the law. The law was designed to provide a federal remedy against officials who violated the rights of the newly freed slaves or who stood by while others, like the Ku Klux Klan, did so. Specifically, it authorizes individuals to sue in federal court “any person who under color of law” violates their constitutional rights. The purposes of the law are to compensate persons whose constitutional rights have been violated and to deter future violations. Actions brought under Section 1983 are known as constitutional tort suits.

After Congress enacted Section 1983, the law lay largely dormant for some ninety years. In 1961, however, in Monroe v. Pape, the Warren Court breathed life into the statute. The plaintiff in Monroe alleged that thirteen Chicago police officers broke into his home in the early morning without a warrant, made his family stand naked, and interrogated him under physical threat. The Supreme Court upheld the plaintiff’s claim for damages under Section 1983 and interpreted the “under color of law” requirement to include actions by government officials taken under the badge of their authority even if the actions exceeded what they were permitted to do under state law. A police officer who used excessive force—as in the Monroe case—would be a prime example.

As the result of Monroe, Section 1983 became the primary vehicle for enforcing constitutional rights in the United States, and that remains true to this day. As Professor Lynda Dodd of the City University of New York (CUNY) has shown, although the statute has never received as much attention as some of the 1960s-era statutes such as the Civil Rights Act of 1964, Section 1983 has served as a central pillar of civil rights work for more than half a century. It is the means by which plaintiffs challenge the use of excessive force by police officers, race-based patterns of stop and frisk, unconstitutional conditions of confinement, wrongful convictions, and other kinds of official misconduct. While the Justice Department can only investigate a handful of police departments in a year—assuming that it is interested in the issue at all, which Attorney General Jeff Sessions has indicated it currently is not—private litigants file more than 15,000 Section 1983 actions every year and prisoners file more than 30,000. The families of several recent victims of high-profile police killings, including Michael Brown in Ferguson and Eric Garner in New York City, have been among those to bring actions under Section 1983.

Since Monroe, however, the Supreme Court has not been friendly to the statute, consistently narrowing it and making it harder for individuals whose constitutional rights have been violated to prevail in lawsuits. One way the Court has limited Section 1983 is that it has refused to apply the legal doctrine of respondeat superior to cases involving constitutional torts. The respondeat superior principle provides that an employer is liable for the damages caused by the wrongdoing of an employee committed in the course of employment. This doctrine is a general principle of law applicable in virtually all tort cases, including run-of-the-mill auto accidents and cases under federal anti-discrimination statutes. Because the Supreme Court refuses to apply it to suits under Section 1983, however, if a police officer uses excessive force, the municipality that employs the officer cannot be held liable for the damages the officer caused.

The Court has also narrowed the statute by holding that a state is not a “person” and, therefore, cannot be sued under Section 1983. This unfortunate 5–4 Rehnquist Court decision, dating back to 1989, relied heavily on the notion that the word “person” should not be read to include a sovereign. The decision was a sharp setback for civil rights and a victory for the retrograde idea that state sovereignty can serve as a source of resistance to rights guaranteed by the federal Constitution.

A third way that the Court has narrowed Section 1983 is by rejecting the proposition that a supervisor can be liable for the constitutional tort of an employee under his or her supervision. In a 1976 case, citizens of Philadelphia sought to hold high-ranking city officials including the city’s notorious mayor, Frank Rizzo, accountable for the city’s failure to properly handle citizen complaints of police mistreatment. Writing for the Court, Justice Rehnquist said that the plaintiffs needed to show an affirmative link between the supervisors’ conduct and the constitutional violations but provided no further guidance. The Court did not address the issue again until 2009 in a case in which a Pakistani prisoner, Javaid Iqbal, sued corrections officers and high-ranking officials including former Attorney General Ashcroft, who had designated him a person “of high interest.” Iqbal alleged that the extremely harsh conditions of his confinement constituted discrimination based on race, religion (Iqbal was Muslim), and national origin. The Roberts Court squarely held that high-ranking officials could not be held liable for the conduct of subordinates.

Of all the restrictions that the Court has imposed on the statute, however, the one that has rapidly become the most harmful to the enforcement of constitutional rights is the doctrine of qualified immunity. As presently formulated by the Court, this doctrine provides that a government official is immune from liability for violating an individual’s constitutional rights unless the individual can show that the right in question was “clearly established.” To make this showing, the civil rights plaintiff must produce a precedent with facts or circumstances very close to those in the plaintiff’s case. If the plaintiff fails to do so, the case must be dismissed. And as I will discuss, this is precisely what happens in a large number of cases.

The text of Section 1983 says nothing about qualified immunity. Where, then, does the doctrine come from? As one scholar, William Baude of the University of Chicago Law School, has explained, the simple answer is that the Supreme Court made it up. Qualified immunity is a limitation on Section 1983 that the Court created in 1982 without support in the statute’s text or legislative history. Supreme Court justices have offered three different legal reasons for creating the doctrine, none of which are persuasive. One is that it is derived from a “good faith” defense that was available to government officials at common law. A second, offered by Justice Scalia, is that it compensates for the “mistake” that the Warren Court made when it decided Monroe v. Pape. Scalia’s argument, in essence, is that it is appropriate for the Court to invent a new doctrine to correct an earlier error. A third justification is that qualified immunity is a way of assuring that officials are given fair warning about what they are permitted to do. As Baude points out, however, for a variety of reasons none of these justifications hold up. To summarize, there was no good faith defense at common law, the Court’s decision in Monroe was not a mistake, and the fair notice rule—a principle applicable in criminal, not civil, law—is irrelevant. Finally, even if these justifications had merit, the doctrine of qualified immunity would not be the best way of effectuating it. The fact is that there is no persuasive legal basis for the doctrine.

Justices have also advanced several policy reasons in support of qualified immunity. These include a concern about subjecting officials to damage awards and litigation expenses and distracting them from their duties, as well as a concern about deterring people from seeking government jobs. Again, however, these concerns are unfounded. Virtually all officials against whom judgments are taken in Section 1983 cases are indemnified by their employer or their employer’s insurance company. None are required to pay damages out of their own pocket. The same is true of litigation expenses. All officials are represented by counsel paid for by their employer. As for lawsuits being a distraction, I suppose it’s possible, but that hardly seems a legitimate reason to provide an official with immunity for violating someone’s constitutional rights. Finally, I know of no evidence that people are deterred from seeking government jobs because of possible liability for constitutional torts. Ultimately, the doctrine of qualified immunity seems to rest on nothing more than a feeling by Supreme Court justices that government officials should not be held responsible for violating an individual’s constitutional rights except in extremely limited circumstances—that is, if the official did something really terrible.* This feeling, however, is entirely inconsistent with the language and the purpose of Section 1983.

The families of several recent victims of high-profile police killings, including Michael Brown and Eric Garner, have been among those to bring actions under Section 1983. Here, Garner’s mother Gwen Carr (right) joins the Justice for All March, Washington, D.C., December 13, 2014 (Matthew and Heather / Flickr)

From the standpoint of a litigant whose constitutional right has been violated, the biggest problem with the doctrine is demonstrating that the right in question was clearly established. The Supreme Court regularly reminds lower courts that “clearly established law” has to be understood concretely. It is not enough to say that the Fourth Amendment is clearly established, and therefore all Fourth Amendment violations are contrary to clearly established law. Nor is it enough to say, more specifically, that case law clearly establishes that the use of force in making an arrest is unconstitutional, and therefore all excessive force violations are clearly established law violations. The plaintiff must always show a precedent with facts much like those in his or her case. In an excessive force case, for example, the plaintiff must come up with a precedent in which the police used the same kind and amount of force that they used in the plaintiff’s case.

The Court has been extremely aggressive on this issue. Of the nineteen opinions it has issued since 2001, in seventeen it found that government officials were entitled to qualified immunity because the plaintiff could not produce a precedent with facts close enough to those in the case at bar. The last time the Court ruled in favor of a Section 1983 plaintiff on the clearly established law issue, as Penn State legal scholar Kit Kinports points out, was in 2004. Also, more than one-third of these seventeen defendant-friendly rulings came in summary reversals, which are rare in the Supreme Court. The Court continually reminds us that its job is not error-correction but to decide broader questions. In these summary reversals, however, the only question was whether the clearly established law standard applied to a particular set of facts, a pure error-correcting issue. Ironically, in the one summary reversal that favored a Section 1983 plaintiff, Justices Alito and Scalia objected that the Court was engaging in error-correcting.

The Supreme Court’s rulings make it very hard for lower courts to deny immunity. Lower courts are regularly reversed for erring on the side of liability but almost never for granting immunity. The Supreme Court’s message to lower courts is clear: think twice before allowing a government official to be sued for violating an individual’s constitutional rights. As a result, the lower federal courts are disposing of cases based on qualified immunity at an astonishing rate. A recent study analyzed 844 circuit court opinions encompassing 1,460 claims and found that qualified immunity was granted in 72 percent of them, the majority because the plaintiff had not shown that the law was clearly established.

Besides its rulings on the merits of the qualified immunity issue, the Supreme Court has also created procedural obstacles for civil-rights plaintiffs in connection with the issue. The Court regards qualified immunity not as a mere defense but as an actual immunity from suit such that government officials entitled to immunity should not have to undergo pre-trial discovery or trial. Thus, when a trial court denies an official’s request for immunity, the official need not wait for a final judgment before appealing but may do so immediately and thereby bring a halt to all proceedings in the trial court. This makes it much more expensive and time-consuming for civil-rights plaintiffs to pursue their cases.

The Supreme Court also changed the sequence in which trial courts must address the issues in cases involving qualified immunity, and this decision has had a very harmful effect on the development of constitutional law. Previously, trial judges had to determine whether a government official violated the constitutional right at issue before deciding whether the right was clearly established. This was important because it meant that lower courts could not avoid deciding constitutional issues. Recently, however, the Court eliminated this requirement and authorized lower courts to proceed directly to whether the right in question was clearly established. So now, most courts just avoid the constitutional issue. As a result, constitutional issues don’t get resolved and constitutional rights don’t get established, clearly or otherwise.

A number of scholars have been very critical of the Court’s handling of the qualified immunity issue. Professor Baude argues that the Court has acted unlawfully and contrary to conventional norms of statutory interpretation. Professor Kinports contends that the Court’s qualified immunity jurisprudence represents a tacit assault on constitutional tort suits. And Dean Erwin Chemerinsky of the University of California Law School at Berkeley has described how the effect of the Court’s approach is to protect bad cops.

The obvious question is what, if anything, can be done. From a substantive standpoint, it would be relatively easy to fix Section 1983. Many of the problems would go away if the law were changed so that the respondeat superior doctrine applied to constitutional torts. If civil-rights plaintiffs could recover from employers, whether an employee was entitled to qualified immunity wouldn’t matter. For a number of reasons, however, it is extremely unlikely that the Supreme Court will change the law anytime soon. For one, not a single justice consistently dissents from the Court’s project of preserving and expanding the immunity of government officials.

From the standpoint of progressives, this might be the most distressing part of the Section 1983 story: the fact that the Clinton and Obama appointees to the Court seem to be all in on undermining the most important civil-rights statute on the books. Occasionally, one of the Clinton or Obama appointees dissents from one of the Court’s summary reversals based on qualified immunity, but these dissents are rare and never raise questions about the legitimacy of the doctrine itself. Contrast this to what Justice Rehnquist did when he was the only hardcore conservative on the Court. A determined opponent of civil rights, Rehnquist consistently dissented from pro–civil rights rulings seeking to plant seeds that might bloom into majority opinions if the Court’s composition subsequently changed. If a Thurgood Marshall were on the Court, that is likely what he would be doing. Sadly, nothing like that is going on today. And the same is true of the Court’s treatment of another important civil rights issue, habeas corpus, where again the Court zealously imposes restrictions far beyond what is required by the governing law.

The disturbing failure of the Clinton and Obama appointees on issues like qualified immunity—a seemingly minor, technical issue with sweeping implications—is symptomatic of a problem that has plagued progressives for many years: a reluctance to recognize the importance of traditional civil-rights litigation. As Professor Dodd of CUNY explains, until the recent police shootings in Ferguson and elsewhere, we heard very little about civil rights in the political or legal world for a very long time, roughly since the 1960s. As the glory of the Warren Court faded, so too did the voices of the Warren Court generation. And succeeding generations of progressives rarely made the argument that lawyers bringing lawsuits and courts interpreting the Constitution could make the world a better place. During this period, however, conservatives unremittingly attacked judicial activism, championed tort reform, and fought a sustained war on legal liberalism. And there is little doubt that they have had an intimidating effect. Even after Ferguson, progressives, civil rights advocates, and policymakers have said virtually nothing about the importance of enforcing civil rights through private litigation under Section 1983.

Presidents Clinton and Obama, both of whom taught constitutional law, ironically both exemplified this attitude of indifference toward civil-rights lawsuits. President Clinton, for example, signed two bills limiting the right to challenge constitutional violations in court. One, the Antiterrorism and Effective Death Penalty Act (AEDPA), restricts the right of prisoners convicted in state court to use habeas corpus to challenge the constitutionality of their convictions in federal court. The other, the Prison Litigation Reform Act (PLRA), restricts the right of prisoners to bring constitutional claims involving misconduct by prison guards and other prison officials. Both of these statutes make it impossible for the most vulnerable and least influential members of society to pursue valid constitutional claims. Both bills could have been vetoed at little political cost. President Obama also rejected a heroic role for civil rights litigation and actually went so far as to say that while the Warren Court’s approach was justified because of Jim Crow, he would be troubled if the Court engaged in that kind of activism today.

This downplaying of litigation has been very harmful. Private litigation remains one of the most important means of developing and enforcing constitutional rights. Moreover, by downplaying the importance of constitutional litigation, progressives allow the Supreme Court to undermine constitutional rights more or less in secrecy, and they give the Court the impression that no one much cares. For example, despite how much harm the Court’s qualified immunity jurisprudence is doing to civil rights, no United States senator asked Judge Gorsuch about the subject at his confirmation hearing in March. Progressives and other civil rights advocates need to speak out about this issue. They also should probably begin to think about a strategy to persuade a future Congress to strengthen Section 1983. Congressional action to strengthen civil rights is not as rare as one might suppose. In 1978, Congress passed the Pregnancy Discrimination Act to overrule a Supreme Court decision that pregnancy discrimination was not sex discrimination under Title VII, and in 1988 Congress passed the Civil Rights Restoration Act for the purpose of correcting a Supreme Court decision regarding federal financial assistance to schools. Title VII has also been the subject of legislative overrides, as in the Civil Rights Act of 1991 and the Lily Ledbetter Act of 2009. Also, in the last session of Congress, legislation was introduced to undo some of the problems created by the Clinton-era PLRA including the ban on awards of emotional injury without a prior showing of physical harm, the onerous requirement that prisoners comply with internal grievance procedures before seeking relief in court, and the difficulty that juveniles encounter in using the law.

Both the Supreme Court and Congress could easily fix the problems that the Court has created involving Section 1983. Neither, however, will do so unless a broad base of public support emerges. The emergence of Black Lives Matter and of the Moral Mondays movement in North Carolina, led by Rev. William Barber, show the stirrings of a multiracial, twenty-first-century civil rights movement—likely the best hope for pushing Congress to act. In the meantime, however, the issue is in the hands of the judiciary and it is essential that lawyers, judges, and progressive legal organizations continue to argue strenuously against the course that the Supreme Court has recently taken.

Lynn Adelman is a United States District Court Judge in the Eastern District of Wisconsin and a former Wisconsin state senator.

* In 2002, the Supreme Court ruled in favor of Larry Hope, a former Alabama prisoner who alleged cruel and unusual punishment after three Alabama prison guards handcuffed him to a hitching post, ordered him to take off his shirt, and forced him to spend seven hours in the hot sun without bathroom breaks while the guards taunted him about his thirst. The Court was a little looser about qualified immunity than usual because of the outrageousness of the conduct.